Citation NR: 9603337
Decision Date: 02/08/96 Archive Date: 02/20/96
DOCKET NO. 94-02 321 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to an increased (compensable) rating for
dermatitis of the right calf residuals of petroleum burns.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Constance C. Hickey, Associate Counsel
INTRODUCTION
The veteran had active service from August 1965 to February
1979.
This appeal to the Board of Veterans' Appeals (Board) arises
from the May 1992 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Newark, New
Jersey, which confirmed and continued the noncompensable
rating for dermatitis of the right calf, residuals of
petroleum burn.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by and on behalf of the veteran that he is
entitled to a compensable rating for dermatitis of the right
calf, residuals of petroleum burn. The veteran's
representative maintains that evaluation under additional
diagnostic codes relating to third degree burns and
superficial scars with recurrent ulceration is warranted and
would result in a compensable evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
folder. Based on our review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the criteria for an increased
(compensable) rating for dermatitis of the right calf,
residuals of petroleum burn are not met.
FINDING OF FACT
The dermatitis of the right calf, residuals of petroleum
burn, is manifested by an eight by seven centimeter
eczematous patch with excoriations and no evidence of
ulceration.
CONCLUSION OF LAW
The criteria for an increased (compensable) rating for
dermatitis of the right calf, residuals of petroleum burn
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, and Part 4, Codes
7801, 7803, and 7806 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset, the Board finds that the veteran has met his
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that his claim is well-
grounded; that is, the claim is plausible. Additionally,
there is no indication that there are unobtained records
which are available and which would aid a decision in this
case. Accordingly, we conclude that the record is complete
and that there is no further duty to assist the veteran in
developing the claim, as mandated by 38 U.S.C.A. § 5107(a).
Factual Background
Service medical records dated in January 1966 indicate the
veteran was seen for a bandage change on the right leg. Two
days later he was treated for petroleum burn of the right
leg of two and one half months duration. The burn was
described as infected and edematous. The impression was
infected burn wound. Cleansing and surgery were noted.
Several days later it was recorded that the veteran had a
history of petroleum burns four weeks earlier, which appeared
to be less that third degree burns, that had been healing.
There was some surrounding erythema and induration with
central scabbing. It was noted that there was no swelling of
the ankle or foot. The impression was burn on the right leg
resolving. A second progress note recorded the same day
stated right leg not infected; temperature 98 degrees.
Clinical records dated in March 1966 noted that the right leg
was improving very well. In May 1978 there was no infection,
but a dry and crusting area which appeared to be healing very
well.
Clinical records dated in January 1978 indicated that the
veteran was seen for infection of the right leg with onset
two months earlier. Eczematoid rash was noted over an old
injury on the right lower leg. In March 1978 the veteran was
again seen for a rash over his lower right leg. The examiner
noted an erythematous scaly rash with excoriation on the
right leg. The assessment was contact or allergic
dermatitis. The report of the veteran's separation
examination was devoid of reference to right leg conditions.
On VA examination in August 1980 the veteran gave a history
of infection on the right leg with contaminated petroleum,
which occurred during service. He related it occurred while
attending Petroleum School. He was soaked with petroleum and
developed a rash on his right leg. He also reported leg pain
with swelling on prolonged walking. Physical examination
revealed a five inch area of discoloration, mid leg with a
three inch by one and one half inch area showing dermatitis,
never healed. Service connection was granted by rating
action of March 1981 for dermatitis of the right calf,
residual of petroleum burn, evaluated as noncompensably
disabling.
The report of the veteran's September 1987 VA examination
indicates a complaint of skin irritation. No clinical
findings related to skin conditions were recorded.
At the time of the veteran's April 1992 VA dermatology
examination he gave a history of sustaining a petroleum spill
over his entire body during service, with infection
developing in the right leg, and recurrent pain, swelling and
skin lesions since the incident. He reported no recent
treatment. On physical examination the examiner noted an
eight by seven centimeter eczematous area with excoriations,
on the lower right leg, with no evidence of ulceration or
cellulitis. Physical examination of the lower left leg
disclosed a four by five centimeter patch of eczematous
lichen over the lateral malleus. Thick, dry, plaques with
slight scale were noted on the knees and elbows. The
diagnosis was eczema/lichen simplex chronicus; possible
psoriasis. The examiner commented that eczema and psoriasis
are both chronic skin conditions which can be difficult to
differentiate and often are inherited. Eczema can
occasionally be caused or aggravated by contact with
chemicals, however, in this case, he considered it very
unlikely that the skin lesions were directly related to the
petroleum spill in 1967.
The veteran testified at his February 1992 personal hearing
that his exposure to petroleum occurred during a training
session involving the loading of fuel onto a train. The
veteran reportedly scratched his right leg before an
accidental spill caused him to be covered in fuel. The
veteran related that skin began to come off his leg until it
was completely off, revealing blood and pus. He indicated
that three weeks after the accident the diagnosis was third
degree burns. After service he reportedly sought treatment
at hospitals in New York and Philadelphia where he was given
ointments. He related that recently he had been told that
his condition was psoriasis, but doctors subsequently told
him that tests had shown that he did not have psoriasis, but
rather an undetermined condition. The veteran described his
symptoms as dryness and itching in the winter months. He
related that the itching was so severe that he had to choose
between scratching, which split the skin and made it worse,
and pouring alcohol on the skin, which was painful and
burned. In the summer months the skin reportedly peeled off
developing an open weeping wound with seepage of blood and
watery substance. During the summer the veteran kept the
area covered in gauze to prevent infection. He indicated
that he wore long pants in the summer months because he did
not want to expose his condition to the view of others. He
stated that the affected area measures three and one half
inches by five inches. He was currently treating the problem
with ointments and creams, which he received by mail from a
clinic. The veteran testified that he did not have these
symptoms anywhere else on his body.
The veteran's representative argued that his disorder should
be evaluated under the diagnostic code pertaining to scars of
third degree burns and the code for superficial scars, poorly
nourished, with repeated ulcerations.
Entitlement to a Compensable Evaluation for Dermatitis of the
Right Calf, Residuals of Petroleum Burn
In general, disability evaluations are assigned by applying a
schedule of ratings which represent, as far as can
practically be determined, the average impairment of earning
capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such
evaluations involve considerations of the level of impairment
of the veteran's ability to engage in ordinary activities, to
include employment. 38 C.F.R. § 4.10.
Although regulations require that, in evaluating a given
disability, the disability be viewed in relation to its whole
history, 38 C.F.R. § 4.1, 4.2, the present level of
disability is of primary concern. Francisco v. Brown, 7
Vet.App. 55, 58 (1994). In evaluating the veteran's claim,
all regulations which are potentially applicable through
assertions and issues raised in the record have been
considered, as required by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
Where the regulations provide no specific rating for a
disorder, it is permissible to rate under a closely related
disease in which the functions affected, anatomical
localizations and symptomatology are closely analogous. 38
C.F.R. § 4.20. The veteran's disability is currently
evaluated under the provisions of Diagnostic Code 7806
pertaining to eczema, which assigns a noncompensable
evaluation where there is slight, if any, exfoliation,
exudation or itching, if on a nonexposed surface or small
area. and provides a 10 percent disability rating where there
is exfoliation, exudation or itching involving an exposed
surface or an extensive area.
In accordance with 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.7,
where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise the lower rating will be
assigned.
On evaluation of the record with regard to the criteria for a
10 percent evaluation under the provisions of Code 7806, the
Board notes that the preponderance of the evidence is against
assignment of an increased compensable rating for the
dermatitis on the veteran’s right calf. The April 1992
examination report notes excoriations relative to an eight by
seven centimeter patch of skin, on the veteran’s right lower
leg with no evidence of ulceration or cellulitis. The
examiner went on to observe that eczema and psoriasis are
both chronic skin conditions. He noted that eczema could
sometimes be caused or aggravated by contact with chemicals,
however, in this case, the skin lesions were considered to be
unlikely directly related to the chemical spill in 1967. In
view of the evidence of record we do not find that the
veteran’s service connected skin condition meets the criteria
for a compensable rating. The Board was mindful of the
veteran’s complaint at his hearing; however, the objective
medical evidence obtained on examination did not support an
increased rating in accordance with the rating criteria.
The Board notes that the veteran's representative contends
that evaluation under additional diagnostic codes is
warranted. We find that evaluation under the provisions of
Code 7801 pertaining to third degree burns would not be
appropriate inasmuch as the record shows that the only
physician who commented on third degree burns was the January
1966 examiner who expressed his opinion that the veteran's
condition did not meet that level of injury. Similarly,
rating under the provisions of Code 7803 pertaining to
superficial scars, poorly nourished is not warranted inasmuch
as the recent VA examination report states that there is no
evidence of ulceration.
In exceptional cases where evaluations provided by the rating
schedule are found to be inadequate, an extraschedular
evaluation may be assigned which is commensurate with the
veteran's average earning capacity impairment due to the
service-connected disorder. 38 C.F.R. § 3.321(b). However,
the Board finds that the regular schedular standards applied
in the current case adequately describe and provide for the
veteran's disability level. There is no evidence of any
unusual or exceptional circumstances, such as marked
interference with employment or frequent periods of
hospitalization related to this disorder, that would take the
veteran's case outside the norm so as to warrant an
extraschedular rating.
In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
event, or whether the preponderance of the evidence is
against the claim, in which case the claim is denied.
38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49
(1990). In this case, the Board finds that the preponderance
of the evidence is against the veteran’s claim.
ORDER
An increased (compensable) rating for dermatitis of the right
calf, residuals of petroleum burn is denied.
STEVEN L. COHN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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